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A protest for marriage equality: Photograph: Mother Jones
A protest for marriage equality: Photograph: Mother Jones

THE LAST TIME states stopped groups of adults from marrying each other, it was 1967 and many southern states still barred whites and non-whites from tying the knot.

Richard and Mildred Loving were an interracial couple. They lived in Virginia which forbade such unions.  So, they married in Washington D.C. to avoid the prohibition in their home state.  After they returned home, Virginia authorities arrested them in their bedroom.

Robert B. Lowe
Robert B. Lowe

Eventually, their case – pushed forward with funding from black and Asian civil liberty groups – reached the U.S. Supreme Court which overturned an 1883 decision upholding such marriage bans and struck down the Virginia law.

But this came only after the Virginia trial judge in the case, Leon Bazile, relied on religious arguments to justify the law.  He explained:

“Almighty God created the races white, black, yellow, Malay, and red, and placed them on separate continents, and but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend the races to mix.”

Brilliant!

I propose a new set of awards, called the “Leons” in honor of Bazile, to be given to those who adopt take-no-prisoner stands on the wrong side of history.

Now the Supreme Court is again pondering questions that combine marriage and civil rights in two cases involving same-sex marriage.  In my view the party risking the greatest damage here is the Court itself and its credibility.   Left to their own devices, without Chief Justice John Roberts playing the role of grownup, members of the Court could easily stake out Leon-worthy positions.

If public opinion polls are to be believed, the shift in sentiment toward the same-sex marriage question and toward gay and lesbian equal rights generally has been so swift and dramatic that California’s Proposition 8 could now easily be repealed.  It was approved only 5 years ago and its prohibition of same-sex marriage is one of the cases before the Court.

DivineFury-3dLeftIn this short time frame, the position opposing gay rights and same-sex marriage has quickly gone from the predominant sentiment nationwide to approaching fringe status.    Corporate America stumbled over itself to sign on to a recent legal brief supporting same-sex marriage.   And many Republicans with national stature did the same.  Gay and lesbian athletes, newscasters and other celebrities are coming out on almost a weekly basis.  Delaware just became the 11th state to legalize same-sex marriage.

If all this does, indeed, herald a trend, over the next five years many more states will authorize same-sex marriage either through initiatives or state court decisions.

The last time marriage and equal rights were intertwined, the Court elected to ride with the tide of history and in the direction of rapidly building public consensus.   But the Court was much different then with a majority of justices and a Chief Justice who seemed willing and eager to reflect, if not lead, the shifts in values held by the country.

In contrast, it seems as if the deciding force in the Court’s debate may be Roberts’ desire to avoid the embarrassing legacy an intemperate decision, or even a minority opinion, could leave the court that will bear his name forever.   In the past, justices who supported slavery and appalling racism were dead and buried long before their words could return to haunt them.

Today’s justices likely won’t have that luxury.

The Leons await.

Robert B. Lowe’s latest novel, Divine Fury, is a mystery thriller about an openly gay candidate running for governor of California and the attempts to stop him.  Lowe’s own marriage is one that would have been illegal in Virginia before 1967 and in his home state of California prior to 1948.

 

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